Review on Motion: An Appeal Within an Appeal

The Florida Rules of Appellate Procedure provide for appellate review of certain kinds of lower tribunal orders “by motion” or “on motion.” The party seeking review of such orders does not initiate a new appeal because the motion and appendix are filed on the docket of an existing appeal that is pending or was recently concluded. Some of those situations will be summarized here.

Post-Trial Release in Criminal Appeals. In appeals by a criminal defendant, the trial court may hear motions for post-trial release pending appeal. In appeals by the state, the trial court may hear motions by certain incarcerated defendants seeking to be released on their own recognizance. Review of orders relating to post-trial release pending appeal must be by the appellate court on motion. Rule 9.140(h)(4).

Orders Regarding Stay Under Rule 9.310. In general, a party seeking to stay a final or non-final order pending appellate review must file a motion in the lower tribunal under Rule 9.310. To seek review of orders on motions entered by lower tribunals under that rule, the aggrieved party must file a motion with the appellate court. Rule 9.310(f).

Stay of Administrative Action Under the APA. In general, a party seeking to stay administrative action under the Administrative Procedure Act (APA) pending appellate review, will file a motion for stay with the lower tribunal. Review of the lower tribunal’s order on the motion for stay must be by a motion filed with the appellate court. Rule 9.190(e)(2)(A).

Stay or Supersedeas of Other Administrative Action. A party seeking to stay administrative action not governed by the APA must file a motion in the lower tribunal, which may grant, modify, or deny a stay. Review of those orders is by motion filed with the appellate court. Rule 9.190(e)(3).

Certain Orders in Family Law Matters. The trial court retains jurisdiction to enter and enforce orders specified in Rule 9.600(c), such as certain support and attorney’s fees matters, in family law cases during the pendency of an appeal. Review of those orders is by motion filed in the appellate court. Rule 9.600(c)(3).

Orders of the Lower Tribunal Regarding Appellate Fees. A party seeking an award of appellate attorney’s fees must file a timely motion in the appellate court. A grant of entitlement may be conditional or unconditional. The appellate court generally directs the lower tribunal to determine the reasonable amount of fees (and, if entitlement is conditional, to make determinations of the stated conditions). Review of orders rendered by the lower tribunal under Rule 9.400 is by motion filed in the appellate court. Rule 9.400(c).

Workers’ Compensation Appellate Fees. If the appellate court determines that a party in a workers’ compensation appeal should receive an award of appellate attorney’s fees, the lower tribunal (judge of compensation claims) will have jurisdiction to determine the amount after the mandate is issued. Review of the lower tribunal’s order on appellate fees and costs is by motion filed in the appellate court. Rule 9.180(i)(4).

Attorney’s Fees in Administrative Appeals. If the appellate court decides to award attorney’s fees in an administrative law appeal, the court may remand the matter to the lower tribunal (generally, the agency) or to the administrative law judge for determination of the amount, or it may refer the matter to a special magistrate. Review of a resulting order is by motion filed in the appellate court, or objections to the report of a special magistrate are filed in the appellate court. Rule 9.190(d)(3).

Orders Regarding Indigent Status. “A party who has the right to seek review by appeal without payment of costs shall … file a signed application for determination of indigent status with the clerk of the lower tribunal. … The clerk of the lower tribunal’s reasons for denying the application shall be stated in writing and are reviewable by the lower tribunal. Review of decisions by the lower tribunal shall be by motion filed in the [appellate] court.” Rule 9.430(a).

Indigency in Workers’ Compensation Appeals. An appellant in a workers’ compensation case who is unable to pay the filing fee must file in the lower tribunal, together with the notice of appeal, a verified petition or motion to be relieved of paying filing fees due to indigency. If the judge of compensation claims enters an order denying relief, the appellant must deposit the filing fee with the lower tribunal unless timely review is sought by motion filed in the appellate court. Rule 9.180(g)(2)(E).

It is important to ascertain and meet any deadline stated in the individual rules for review by motion. As this summary is not exhaustive and the rules can change, it is important to check the latest version of the rules or consult an appellate lawyer before seeking review of any order.

Robin Bresky

Robin Bresky, of The Law Offices of Robin Bresky in Boca Raton, is an appellate attorney who handles civil and criminal appeals and litigation support matters throughout Florida. Robin is a member of The Florida Bar board of governors. She is the president of the National Conference of Women’s Bar Associations and is a past president of the Florida Association for Women Lawyers. Randall Burks is an experienced appellate attorney with the firm. You can visit www.BreskyAppellate.com for more information.